Following up from our recent newsletter (Legal Alert - Coronavirus and your employment arrangements) about managing the risks of coronavirus in your organisation, we look at why you should be planning for the possibility of emergency restrictions, should the virus spread in Australia.

On 27 February 2020, the Prime Minister upgraded Australia’s response to the coronavirus, declaring that the situation will now be treated as a “pandemic”, even though the rest of the world is yet to declare it as such. At the time of making the declaration, there are confirmed cases of the virus in 47 countries around the world, with over 82,000 victims and almost 2900 deaths.

By making the declaration, the federal government cantake emergency steps, if required, to respond as the disease spreads. Emergencysteps could include temporarily closing schools, workplaces and publicfacilities, as has already been done in Wuhan and parts of Italy.

It is currently envisaged, based on previous pandemics, that a coronavirus pandemic could have a serious impact on businesses, and the Australian economy in general, if a worst-case scenario were to eventuate. Media sources have reported:

“The social distancing measuresthat may be required will have wide-ranging effects, with closure of schoolsand childcare services, and cancellation of public events. It is estimated thatup to 40% of the workforce may withdraw from work at any one time due toillness, the need to care for family members or the fear of contracting thevirus in the workplace or on public transport.”

The possible financial repercussions are that the Australian GDP could drop by as much as 10% if a pandemic hits Australia. Australian businesses have already been affected, due to the travel restrictions and community uncertainty about the effects of the virus.

How can you manage your workplace in a pandemic?

For as much as we hope that a pandemic does not hit Australia, by ignoring the threat your organisation is at risk of serious harm. The better approach is to plan for the worst and hope for the best. With regards to your workplace, this means developing a management and recovery plan. We recommend that you:

• Consider what you can and would need to do if anyone in your workplace were diagnosed with COVID-19;
• Review how much work could be completed offsite if you had to close your worksite;
• Review and test how the organisation would operate if it had to be run remotely;
• Review what your team would need to do to prepare for remote work if they were required to do so;
• What are the costs of employees working from home? How will they be tracked and covered;
• Ensure your workplace policies are up to date and your team are acquainted with them;
• Plan how you would manage team members who could not do their jobs from another work location or from home; and
• Check your organisation’s insurance coverage so you understand what you are covered for and how you need to manage the process from the insurer’s perspective.

Employees taking leave because of COVID-19

Personal Carer’s leave

Under the National Employment Standards (NES),set out in the Fair Work Act 2009 (FWA), all permanent employees areentitled to a minimum of 10 days for personal and carer’s leave each year.   An employee may take paid personal/carer’sleave if the leave is taken:

1. because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
2. to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
3. a personal illness, or personal injury, affecting the member; or
4. an unexpected emergency affecting the member.

Whether the issue is that an employee is sick themselves, a member of their household or family is sick, or they have school aged children who are excluded from school because of an emergency measure, the employee will be entitled to use their personal/carer’s leave.

If an employee takes personal/carer’s leave, theEmployer must pay them at their base rate of pay for their ordinary hours ofwork during the relevant period. If an employee is on personal /carer’s leaveand a public holiday falls during that period, they must be paid for the publicholiday rather than have that time drawn from their personal carer’s leave.

If your employees are covered by a modern award orenterprise agreement, there may be more beneficial provisions that they areentitled to and you must comply with those provisions.

Unpaid Carer’s leave

Under the NES, an employee may also take unpaidcarer’s leave if the leave is taken to provide care or support to a family orhousehold member and they do not have any paid personal/carer’s leave available.An employee may take unpaid carer’s leave for a single continuous period of upto 2 days or any separate periods to which the employee and his or her employeragree.

Compassionate leave

If the worst happens and an employee has a family orhousehold member who contracts or develops a personal illness that poses aserious threat to their life, or they die, the employee will be entitled to 2days of compassionate leave for each of those occasions. An employee may takecompassionate leave for each occasion if the leave is taken:

• tospend time with the member of the employee’s immediate family or household whohas contracted or developed the illness, or sustained a personal injury; or
• afterthe death of the member of the employee’s immediate family or household

An employee may take compassionate leave as a singlecontinuous 2-day period; 2 separate periods of 1 day each; or any separateperiods to which the employee and his or her employer agree.

If the compassionate leave relates to the contractionor development of a life-threatening personal illness, or the sustaining of apersonal injury, the employee may take the compassionate leave for thatoccasion at any time while the illness or injury persists.

Notice requirements for leave

An employee must give their employer notice of the taking any of the above forms of leave as soon as possible (which may be a time after the leave has started) and they must advise the employer of the period, or expected period, of the leave.

An employee who has given their employer notice of theneed to take leave must, if required by the employer, give the employerevidence that would satisfy a reasonable person that the leave is taken for thereason and in the way specified in the FWA. An employee is not entitled to takeleave unless they comply with the notice requirements.

Notice is an area that often requires further information from employers about form and timing to ensure that all parties are clear about the terms of the provisions. We recommend that employer’s have thorough leave policies in place, so employees understand what is required of them, when they wish to access one of the forms of leave available under the NES, or if the employer affords them further entitlements.

Organisation shutdown ordered

Section 524 of the FWA allows employers to stand employeesdown without pay if the employee cannot be usefully employed because of one ofthe following circumstances:

1. industrialaction (other than industrial action organised or engaged in by the employer);
2. abreakdown of machinery or equipment, if the employer cannot reasonably be heldresponsible for the breakdown;
3. astoppage of work for any cause for which the employer cannot reasonably be heldresponsible.

The third reason is the one that would apply in theinstance of a site or organisation shutdown brought about by a governmentdirection, in response to a pandemic.

If there are further terms in a modern award or enterpriseagreement that affect stand down provisions, those terms will override or addto the FWA provisions.

If an employer stands down an employee based onsection 524, the employer is not required to make payments to the employee for theduration of the stand down.

Alternative leave arrangements

To build goodwill with your employees, it may be goodpractice to offer them the opportunity to draw on their accrued annual leave,or if they can access long service leave, to draw on that provision, ratherthan be without pay for the duration of a stand down.

If an employee enquires about accessing long serviceleave, it is critical to remember that they must have completed the requiredperiods of service before they can draw on their accrued leave. In Queensland,employees can access their accrued long service leave in accordance with termsset out in the below table:

Period of continuous Service Long service leave entitlement 10 years 8.6667 weeks After a further 5 years A further 4.3333 weeks (total of 13 weeks) More than 15 years Long service leave can be accessed as it accrues

An employer can exercise the discretion to offer employeesthe alternative of taking annual leave in advance of its accrual. If you dodecide to apply that option, it is important to document the agreement toensure that you can claw back any overpayments if an employee resigns beforethey have accrued the leave they have already used. Most modern awards have atemplate document for the purpose. We also recommend that your organisation’sleave policy covers the process applied for taking annual leave in advance andwhen it will be permitted.

If you use time off in lieu (TOIL) of overtimepayment, you may invite your employees to use any accrued TOIL during a standdown rather than remain unpaid for the stand down period.

Working from home

Directing your employees to work from home can be a good alternative to closing an organisation down during a period of enforced closure, if your organisation lends itself to that arrangement. Even if all of your employees can’t do productive work during a closed own period, you may need to keep some administrative, reception or office based staff in operation to keep the organisation running as much as possible, to retain some cash flow or manage ongoing projects.

If you direct your employees to work from home, youwill be responsible for ensuring that they are properly equipped to do theirwork and comply with your obligations.

Working from home will not be effective if theemployee is staying home to care for children at the same time. To ensure thatyour staff understand what is required when they work from home, we recommendthat you have a “Working from Home” policy and agreement. Your policy shouldset out the requirements for employees working from home, such as:

• Communication with the workplace, other employees andmanagement;
• Level of supervision required;
• Accessibility for clients;
• Recording time and workflow;
• Privacy considerations;
• Compliance with workplace health and safetyrequirements;
• Resources and equipment required; and
• Responsibility for costs incurred.

If you direct employees to work from home, you will beresponsible for covering the associated costs like the relevant component costsof:

• Internet;
• Telephone line rental/ mobile plan; and
• Electricity.

Before you proceed with a “Working from Home”Agreement, we recommend that you direct the employee to conduct an audit of thehome and workspace to ensure that they have:

• An ergonomically sound workstation that meets workrequirements and minimise risk of injury;
• There is sufficient light for work to be performedsafely;
• There is sufficient ventilation;
• Noise levels are at acceptable levels so as not todistract the employee during work;
• They have access to any further equipment required tocomplete work tasks in an efficient manner;
• They have safety equipment like fire extinguishers andfirst aid kits, and they know how to use them;
• They have the appropriate telephone and data lines toaccess and complete work;
• They have a secure environment if they are workingwith information subject to privacy requirements; and
• They are appropriately insured to work from home.

It will be easier to respond to a close down with working from home arrangements if you discuss the idea with your staff ahead of time, train them in the policy standards and assess their capacity, before you need to apply the provisions.

Sending sick employees home

When an employee shows up to work sick, not only are they more likely to spread their illness, but they also cost your organisation money in lost productivity. Sickness can spread quickly within the workplace. With many illnesses, people are contagious before they show symptoms, hence recent directions for people exposed to COVID-19 to self-isolate for the 2‑week incubation period.

Employers have a duty of care under the Work Healthand Safety Act 2011 (Qld) (“WHS Act”) to ensure, so far as reasonablypracticable, the health and safety of workers. Similar provisions can be foundin corresponding work health and safety legislation around Australia. Equally, underthe WHS Act, workers have a duty to take reasonable care for their own healthand safety and take reasonable care that their acts and omissions do notadversely affect the health and safety of other persons. They must also complywith reasonable instructions and cooperate with policies and procedures givenby their employer.

If an employer reasonably suspects that an employee isposing a health risk to other employees, for example, if the employee has signsof a contagious disease, the employer may consider it necessary to ask theemployee to obtain a medical certificate indicating that the employee is fit toattend for work.

A direction of this type can be a source of confusionand dispute, so it is recommended that the ability to direct employees to takeleave when they are not fit for work is set out in a workplace policy. It mayalso be relevant that it is included in the employee’s employment agreement.

Before you get to the situation where you have todirect employees to take personal leave, we recommend that you review yourworkplace policy on leave provisions to ensure that it explains why and whenyou might direct someone to take personal leave and what they need to do toensure they can return to the workplace safely.

WHS and contractors

If you deal with contractors at your workplace, you should be mindful that their contract should apply the policies and procedures of the workplace to their work. It is also important that they understand their workplace health and safety obligations and that if they attend the workplace whilst sick, you may need to direct them to leave the workplace and return only when they have been cleared as fit for work by a medical practitioner. In the current environment, hospitals and private practitioners are alert to the risks of spreading the COVID-19 virus and will not clear someone to work if they have been exposed to the virus.

Keep up to date

If you are concerned about managing the risks ofinfection in your workplace, be mindful that the virus has spread, and the Australiangovernment continues to update its travel advice to capture high risk locationsand changes in the spread of the virus. If someone in your workplace istravelling and due to return, check the Smartraveller website for currentinformation on the COVID-19 virus.

https://www.smartraveller.gov.au/news-and-updates/coronavirus-covid-19

What if an employee is caught in another country while they are traveling?

There is a possibility that employees may be caught inquarantine situations if they are currently travelling overseas. The Fair WorkRegulations (reg 3.01) and the FWA provide protection to employees who cannotattend work for an extended period of time due to illness or injury.

Under section 352 of the FWA, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances.

Under the general protections regime of the FWA, employee’s are protected if they are absent from the workplace for up to 3 months in a 12 month period, due to illness or injury and where they do not have paid personal/carer’s leave to cover their absence, whether based on a single or separate illnesses or injuries. On that basis, if you were to take steps to terminate their employment because they were not fit to attend work, because of an illness or injury they had advised you of, you would be at risk of a general protections claim. Before you do take steps to bring an employee’s employment to an end, because of an extended period of absence, we recommend that you seek legal advice about the risks attached to your proposed actions.

Conclusion

Managing the effects of COVID-19 and any other serious contagious illness is best done with good planning and preparation. That must be done ahead of time and should ideally be tested to ensure it is effective at the critical period. Given the view of the World Health Organisation is that it is a case of when the virus hits rather than if it hits, planning now could save you time, stress and money.

If you don’t have workplace policies in place or you need assistance in preparing crisis management plans that comply with relevant legislation, we can assist you. Call us at 07 3160 0010 or contact us at our website www.activelaw.com.au or email michelle.cowan@activelaw.com.au.

Disclaimer - Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.